Stipanich v The State of Western Australia

[2018] WASCA 22

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STIPANICH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 22

CORAM:   BUSS P

MAZZA JA
MITCHELL JA

HEARD:   6 NOVEMBER 2017

DATE OF FINAL
SUBMISSIONS       :   5 DECEMBER 2017

DELIVERED          :   27 FEBRUARY 2018

FILE NO/S:   CACR 97 of 2017

BETWEEN:   DAVID JOHN STIPANICH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :CACR 101 of 2017

BETWEEN             :ADAM BRENT GREER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MCGRATH J

File No  :INS 314 of 2015

Catchwords:

Criminal law - Appeals against conviction - Appellants jointly tried on four counts in an indictment - One appellant convicted of two counts and acquitted of two counts - The other appellant convicted of three counts and acquitted of one count - Appellants found guilty of some pleaded circumstances of aggravation and not guilty of other pleaded circumstances of aggravation - Inconsistent verdicts

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 333, s 371A, s 378, s 392, s 401(1)

Result:

CACR 97 of 2017
Leave to appeal granted
Appeal dismissed in relation to count 1
Appeal allowed in relation to count 2
Judgment of conviction of robbery on count 2 set aside, judgment of acquittal of robbery entered and judgment of conviction of stealing entered
Appellant resentenced

CACR 101 of 2017
Leave to appeal granted
Appeal dismissed in relation to count 1
Appeal allowed in relation to count 2
Judgment of conviction of robbery on count 2 set aside, judgment of acquittal of robbery entered and judgment of conviction of stealing entered
Appellant resentenced

Category:    A

Representation:

CACR 97 of 2017

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Justine Fisher Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

CACR 101 of 2017

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Seamus Rafferty Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Huynh v The Queen [1999] WASCA 45

KND v The State of Western Australia [2017] WASCA 36

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Riley v The State of Western Australia [2007] WASCA 22

Ritchie v The State of Western Australia [2016] WASCA 134

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

Williams v Smith [1960] HCA 22; (1960) 103 CLR 539

1. BUSS P & MAZZA JA:  The appellant in CACR 97 of 2017, David John Stipanich, and the appellant in CACR 101 of 2017, Adam Brent Greer, have appealed against conviction. 

2. Mr Stipanich and Mr Greer were charged on indictment with four counts. 

3. Count 1 alleged that on 14 February 2015, at Carlisle, Mr Stipanich and Mr Greer entered or were in the place of BWH Holdings Pty Ltd without its consent, with intent to commit an offence therein, contrary to s 401(1) of the Criminal Code (WA) (the Code), and that:

   (a)Mr Stipanich and Mr Greer were armed with an offensive weapon, namely a claw hammer;

   (b)Mr Stipanich and Mr Greer were in company with each other;

   (c)Mr Stipanich and Mr Greer detained Daniel Trevor Kealley; and

   (d)the place was ordinarily used for human habitation.

4. Count 2 alleged that, on the same date and at the same place, Mr Stipanich and Mr Greer stole from Mr Kealley, with threats of violence, $75 in cash, a mobile telephone, a wallet and bankcards the property of Mr Kealley, contrary to s 392 of the Code, and that:

   (a)Mr Stipanich and Mr Greer were armed with an offensive weapon, namely a claw hammer; and

   (b)Mr Stipanich and Mr Greer were in company with each other.

5. Count 3 alleged that, on the same date and at the same place, Mr Stipanich and Mr Greer unlawfully detained Mr Kealley, contrary to s 333 of the Code.

6. Count 4 alleged that, on the same date and at the same place, Mr Stipanich and Mr Greer stole a motor vehicle, namely a Ford Ranger registration number 1EJP868, the property of Glass Block Constructions (Aust) Pty Ltd, contrary to s 371A read with s 378 of the Code.

7. If the State proved one or more of the circumstances of aggravation pleaded in count 1 or count 2, in addition to proving the elements of the alleged offence, a higher maximum penalty applied. See s 401(1)(a) and s 392(c) and (d) of the Code.

8. On 9 February 2017, after a joint trial in the Supreme Court before McGrath J and a jury:

   (a)Mr Stipanich and Mr Greer were convicted (by a majority verdict) of count 1.  As to the pleaded circumstances of aggravation, Mr Stipanich and Mr Greer were found not guilty (unanimously) of being armed with an offensive weapon, namely a claw hammer, and not guilty (unanimously) of having detained Mr Kealley.  They were, however, found guilty (unanimously) of the other pleaded circumstances of aggravation, namely that they were in company with each other and that the place was ordinarily used for human habitation.

   (b)Mr Stipanich and Mr Greer were convicted (unanimously) of count 2.  As to the pleaded circumstances of aggravation, Mr Stipanich and Mr Greer were found not guilty (unanimously) of being armed with an offensive weapon, namely a claw hammer, but were found guilty (unanimously) of being in company with each other.

   (c)Mr Stipanich was acquitted (unanimously) of counts 3 and 4. 

   (d)Mr Greer was acquitted (unanimously) of count 3 but convicted (unanimously) of count 4.

9. The joint trial was a retrial.

10. On 6 April 2017, each of Mr Stipanich and Mr Greer was sentenced to 4 years 10 months' immediate imprisonment on count 1 and 4 years 10 months' immediate imprisonment on count 2.  Mr Greer was sentenced to 12 months' immediate imprisonment on count 4.  The sentences were ordered to be served concurrently.  Each of Mr Stipanich and Mr Greer therefore received a total effective sentence of 4 years 10 months' immediate imprisonment.  Mr Stipanich's sentences were backdated to 10 August 2016 and Mr Greer's sentences were backdated to 5 January 2017.  A parole eligibility order was made in respect of each of them.

11. Our view of the appeals is different from Mitchell JA's view.  We would grant each of Mr Stipanich and Mr Greer leave to appeal and allow each appeal in part.  We would not, however, impose different total effective sentences.  Our reasons are as follows.

The State's case at the retrial as opened by the prosecutor

1. The State's case, as opened by the prosecutor, was as follows. 

2. Mr Kealley placed an advertisement on an internet website known as Locanto, which is an online site that introduces people who are seeking companionship or sexual encounters.  He offered to supply a small quantity of methylamphetamine in exchange for sexual favours. 

3. In the early morning of 14 February 2015, Mr Kealley received a response to his advertisement from a person who said her name was Kat.  After they exchanged a number of text messages, Kat invited Mr Kealley to a home unit in Carlisle.  

4. Mr Kealley drove to the Carlisle address in a motor vehicle supplied to him by his employer.  He arrived at about 5.30 am.  Two women greeted Mr Kealley at the front door of the home unit.  They guided him to a bedroom at the rear of the premises.  The home unit was vacant and did not contain any furniture.

5. When Mr Kealley entered the bedroom the two women departed.  He was confronted by Mr Stipanich, Mr Greer and an unidentified third male person.  Mr Stipanich was armed with a claw hammer.  He demanded that Mr Kealley give him his money and his drugs.  Mr Greer took Mr Kealley's wallet and examined its contents which included $75 cash, a small quantity of methylamphetamine and two bankcards.  Mr Stipanich and Mr Greer demanded that Mr Kealley disclose the PIN of the bankcards so they could withdraw money.  Mr Kealley complied with the demand. 

6. Mr Stipanich and the third male person remained in the bedroom with Mr Kealley.  Mr Stipanich continued to hold the hammer.  Mr Greer departed.  Mr Greer took Mr Kealley's car keys and drove Mr Kealley's vehicle to a number of automatic teller machines.  Mr Greer used Mr Kealley's bankcards to withdraw and steal some of his money.

7. Mr Greer informed Mr Stipanich by telephone that he had withdrawn the money from Mr Kealley's account.  Mr Stipanich then told Mr Kealley to put his wrists together.  The third male person tied Mr Kealley's wrists to his feet with a cord taken from a venetian blind.

8. Mr Kealley asked Mr Stipanich what would happen with his vehicle.  Mr Stipanich said they would park the vehicle near the Carlisle Hotel.  He gave Mr Kealley directions as to the location of the hotel and told Mr Kealley to 'take his time untying himself'.  Mr Stipanich and, at some stage, the third male person departed.  At about 6.30 am, Mr Kealley untied himself and left the home unit. 

9. Mr Kealley walked towards the Carlisle Hotel.  He was unable to find his vehicle.  He went to an Ultra Tune store in Carlisle.  Mr Kealley used a telephone at the store to contact his brother‑in‑law.  He asked his brother‑in‑law to collect him.  Next, Mr Kealley telephoned his bank and ascertained that money had been withdrawn from his account.  He cancelled his bankcards.  Mr Kealley saw a police vehicle while he was waiting for his brother‑in‑law on the footpath outside the Ultra Tune store.  He 'flagged the police down' and informed them that he had been robbed. 

10. Police located Mr Stipanich's fingerprints on an exterior alarm box at the home unit.  Mr Stipanich's and Mr Greer's DNA profiles were found on a number of items at the home unit.  Mr Kealley identified Mr Stipanich and Mr Greer from digiboards.  In particular, Mr Kealley identified Mr Stipanich as the person who was 'holding the hammer throughout his ordeal' and Mr Greer as the person who took his wallet (ts 592). 

11. The prosecutor informed the jury that, on the State's case:

    (a)As to count 1, Mr Stipanich and Mr Greer entered the home unit without the consent of the owner, namely BWH Holdings Pty Ltd.  Bruce Harding, who was the director of the company, did not give them consent to enter the premises.  The alarm box and a door of the home unit were damaged.  It was likely they were damaged to facilitate entry.  Mr Stipanich and Mr Greer knew they did not have consent to be inside the home unit.  They were at the home unit with the intention of committing an offence, namely to rob Mr Kealley (ts 595 ‑ 596).

    (b)As to count 2, Mr Stipanich and Mr Greer were at the home unit in the early hours of 14 February 2015 with the plan or intention of robbing Mr Kealley.  Both Mr Stipanich and Mr Greer knew that the offence of stealing with violence or threats of violence was going to be committed.  Each of them gave actual assistance to the other in the commission of the offence.  Mr Stipanich and Mr Greer were present when the demands on Mr Kealley were made with threats of violence.  Mr Stipanich had the hammer.  Mr Greer took Mr Kealley's wallet.  Later, Mr Greer used Mr Kealley's bankcards to withdraw money from his account.  The prosecutor told the jury in relation to the threats of violence:

    Now, threats don't have to be actual words.  You can look at conduct or gestures.  So the State says the mere holding of the hammer is sufficient … to be a threat, and that you'll hear that Mr Greer was standing next to [Mr Kealley] when that was occurring (ts 594 - 595).

    (c)As to count 3, Mr Stipanich and Mr Greer deprived Mr Kealley of his liberty 'by confining or detaining him'.  The detention 'probably occurred over 45 minutes or so'.  It began 'with the presence of Mr Stipanich and the other male with [Mr Stipanich] holding the hammer and indicating that [Mr Kealley was not] able to leave'.  It progressed further 'when Mr Kealley was temporarily tied up' (ts 596). 

    (d)As to count 4, Mr Kealley did not give Mr Stipanich or Mr Greer consent to use his vehicle.  Mr Stipanich and Mr Greer did not have any lawful excuse for using the vehicle (ts 596). 

Mr Stipanich's case at the retrial as opened by his defence counsel

1. Mr Stipanich's case, as opened by his defence counsel, was as follows. 

2. Mr Kealley was not a 'genuine victim' in making a complaint to the police.  Rather, he was 'trying to paint himself as a victim because it was the only way realistically to avoid significant embarrassment to him' (ts 607). 

3. Mr Stipanich did not deny that he was at the Carlisle home unit on the morning in question.  He had received a telephone call from a woman named Rebecca.  She was one of the two women who had greeted Mr Kealley at the home unit.  Mr Stipanich and Rebecca were acquaintances.  She was a sex worker.  Rebecca asked Mr Stipanich to come to the Carlisle address.  He agreed and went to the home unit with his friend, Mr Greer (ts 607).

4. When Mr Stipanich and Mr Greer arrived at the home unit Rebecca told Mr Stipanich that she was with a client (Mr Kealley), who had indicated he was not willing to pay and she was concerned because the client 'was off his face on methylamphetamine'.  Rebecca asked Mr Stipanich if he could 'have a word to [the client] and [Mr Stipanich] agreed'.  Mr Stipanich and Mr Greer spoke to Mr Kealley and told him, in effect, 'mate, you really need … to pay if you want these services' (ts 607 ‑ 608). 

5. After a conversation between Mr Stipanich and Mr Kealley, in Mr Greer's presence, a decision was made that Mr Greer would go to Mr Kealley's bank and withdraw some money so Mr Kealley could pay for the sexual services which Rebecca had agreed to provide.  Mr Greer left the home unit with Mr Kealley's bankcard.  Mr Stipanich remained at the home unit.  Mr Kealley, Rebecca and the other woman went into a bedroom.

6. During this time Mr Stipanich handled some items at the home unit, including the alarm box, and that explained why his fingerprints had been found by police. 

7. Mr Greer returned with money he had withdrawn from Mr Kealley's bank account.  Mr Greer gave the money to Rebecca and the other woman.  Mr Stipanich and Mr Greer then left the premises.

8. In summary, Mr Stipanich's defence was put in the following way.  Mr Stipanich was invited to the Carlisle home unit by Rebecca.  She allowed him to enter the premises.  No one (let alone Mr Kealley) was deprived of liberty.  There was no robbery.  There were no weapons.  Mr Kealley was not tied up, threatened or assaulted by Mr Stipanich or Mr Greer.

Mr Greer's case at the retrial as opened by his defence counsel

1. Mr Greer's case, as opened by his defence counsel, was as follows.

2. In the early hours of 14 February 2015, Mr Kealley was searching the internet for a woman who would be willing to provide him with sexual services.  At the time Mr Kealley was using methylamphetamine.  He was, in effect, endeavouring to barter methylamphetamine for sex.  Mr Kealley sent text messages to, and received text messages from, a person who was a prostitute.

3. Mr Kealley went to the Carlisle home unit to meet the person with whom he had been exchanging text messages.  When he arrived Mr Kealley was met by two women, one of whom was the prostitute with whom he had been negotiating by text message.  An issue arose in relation to payment by Mr Kealley for the prostitute's services. 

4. The prostitute contacted Mr Stipanich.  Mr Stipanich and his friend, Mr Greer, agreed to go to the Carlisle premises to assist the prostitute in obtaining payment from Mr Kealley. 

5. When Mr Stipanich and Mr Greer arrived at the home unit they spoke to Mr Kealley.  Mr Greer agreed, at Mr Kealley's request, to obtain from Mr Kealley's bank account the money he owed the prostitute.  Mr Kealley gave Mr Greer the keys to Mr Kealley's car and his bankcard and PIN.  Mr Greer left.  He obtained and returned with the money.  There was no robbery.  Everything was done with Mr Kealley's consent.

6. Mr Kealley was 'completely and utterly lacking in credibility'.  He was 'evasive [and] a liar' (ts 604 ‑ 605). 

Mr Kealley's evidence at the retrial

1. Mr Kealley's evidence‑in‑chief at the retrial was, relevantly and in essence, as follows:

   (a)At the time of the retrial Mr Kealley was aged 40.  On 14 February 2015, being the date of the alleged offences, he was aged 38 (ts 613).

   (b)On the evening of 13 February 2015, after he had finished work and gone home, Mr Kealley smoked some methylamphetamine (ts 613 ‑ 614).

   (c)In the early hours of 14 February 2015, Mr Kealley placed an advertisement on an internet website known as 'Locanto'.  The advertisement was to the effect of 'good looking guy looking for cloudy fun'.

   (d)Mr Kealley engaged in text‑message exchanges with a person who responded to his advertisement.  The person said her name was Kat or Katrina.  She sent him a photograph of a female body.  Kat said she was 'keen for some cloudy fun as well'.  Mr Kealley responded that he had some methylamphetamine to offer her.  Kat gave him an address in Carlisle and invited him to 'go around there'.

   (e)Mr Kealley arrived at the Carlisle address.  It was a home unit.  He knocked on the front door and a woman answered.  There was another woman standing about 3 m behind her. 

   (f)When he entered the home unit Mr Kealley noticed that there was no furniture in the unit and nothing on the walls.  Mr Kealley followed the women to a room towards the rear of the premises which appeared to him to be a bedroom.  As Mr Kealley entered the room the women left and a man entered.  The man appeared to be Aboriginal.  He was about 6 foot 3 inches in height and had an athletic build.  The man was wearing a hat. 

   (g)The following exchange occurred between the prosecutor and Mr Kealley in relation to the alleged offending:

   Did you have any conversations with this male?---At that time?

   Yes?---As he walked through and that, I just remember … backing myself up against a wall.

   And why did you do that?---Cos I felt threatened.

   And why did you feel threatened?---As he was holding a hammer.

   And where was he holding a hammer?---Think he had it in his right hand, by his side.

   And what did that hammer look like?---It was like a typical carpenter's hammer.  It had a black handle and yellow stem.

   And then what happens next?---Another two gentlemen, they entered the room as well.

   Can you describe what they look like?---Yes.  One of them was, I dare say, about 5 foot 10, 5 foot 11, fairly stocky build as well.  I didn't really get a good look at his face and that.  He … had a hoody over his head … I didn't really see too much of him.  And the third gentleman … he was quite a bit shorter, so I dare say, I don't know, around 5-8.  He had fair complexion, seemed he was a heavier set, probably … carried a little bit of weight but he wasn't fat but he was stocky.

   And … was there any conversations at this point?--- … all I remember is … saying that, 'You've got to be kidding,' or something along those lines.

   Who said that?---I did.

   And then what happened?---I was asked, 'Where is it?'

   Who said that?---The first gentleman … the tallest one … the guy that initially … walked in first, with the hammer.

   … 

   What did you understood for him to mean when he said, 'Where is it'?---Well, I - I thought, in regards to the meth and my money.

   And so what happens next?---I said to them that it was in my front pocket, in my wallet.

   And then what happened?---I recall being asked to raise my hands … above my head.

   Who said that?---The gentleman with the hammer.

   And did you do that?---Yes.

   And then what happened?---The shorter of the three gentlemen, he came over and went through my pockets and pulled out my phone, wallet and car keys.

   And what happens next?---That gentleman proceeded to go through my wallet.

   And what did he do when he went through your wallet?---I think he just pulled out my cards and I think they were asking … where's the drugs.

   Which cards?---I had two Westpac cards, my driver's licence, health care card, Medibank Private card.

   You also said that you had some cash with you?---Correct.  I had $75 cash.

   Did you see anything in relation to that?--- … I don't know what happened to that.

   And when they're asking about the drugs, did you say anything?---I just said it was in the wallet.

   Did you see anything happen in relation to the methamphetamine that you brought?--- … I don't know what happened with it, no.

   And did you get given your wallet back or did it remain‑ ‑ ‑ ?---No, I never received it back.

   Did you see what happened to it?--- … I don't know what happened - what ended up with it.

   And earlier before, you said they were asking some questions about the cards?---Correct.  They were asking for my PIN numbers.

   Did you provide your PIN numbers?---Correct.

   Why?---Well … I felt that by not giving it to them wasn't going to be a good choice to make.  I felt threatened.

   And who was asking for the PIN number?---I do believe it was number 1.

   The guy that you describe holding the hammer?---Correct.

   And then what happens?---I just told them the PIN numbers.  Yes.

   And after you told the PIN numbers, what happened?---The gentleman who went through my pockets and got the keys and that, he proceeded to leave the room.

   And so did that leave the taller guy and the third male in the room?‑‑‑Correct.

   Anybody else there?---Just me.

   And then what happens?--- … I was told to take my shoes off.

   Who told you that?---The gentleman with the hammer.

   Did you take your shoes off?---Correct.

   And what did you do with them?---I just left them on the floor.

   And then what happens?---I was told to sit down.

   Who told you that?---The gentleman with the hammer.

   And did you sit down?---Correct.

   And where did you sit?---I sat on the floor, with my back up against the wall, under the window.

   And was there any further discussion?---Yes.  The gentleman with the hammer, he started saying to me that this was my karma, I had this coming.  Yeah.

   And how did that person appear to you?---It seemed that he was on drugs himself.

   … 

   … Mr Kealley, when you say drugs, what drugs do you mean?‑‑‑Well, at the time, I just thought that he had been on meth as well.

   … 

   Now, you said he was talking about you getting your karma or something similar.  Was there any further discussion?---In regards to, sorry?

   Well, did he say anything else to you?---He was just saying to me that … he hoped that I would learn from this situation.

   Did you say anything in response?---No … I was trying to avoid … agitating them or giving them any reason to - to hurt me.

   And what about the other guy, did he say anything to you?---He said very little … 

   Was there any further conversation or discussions?--- … the gentleman with the hammer, he approached me and he took a pair of sunglasses off my head.

   And what did he do with them?---He put them on himself.

   Now, you keep saying the person with the hammer, did he ‑ ‑ ‑?‑‑‑Correct.

    … did he keep hold of the hammer the whole time or at any time did he let go?---No, he had hold of it the whole time.

   And apart from your sunglasses, was anything else removed from your person ‑ ‑ ‑ ?---No.

   … 

   And how long were you in that room for?---Quite a period of time, definitely over half an hour … I felt anywhere between half an hour to an hour.

   Did those - either of those males have a conversation with each other?---The gentleman with the hammer, he was talking on the phone on a couple of occasions.

   Okay.  And when you say a couple, do you mean two?--- … I do believe it was two.

   Did you hear what was said on any of those occasions?---Yeah.  I think … he was asking the question, 'How is it going,' or, 'Did you get it all,' something along those lines.

   And when you say he, do you mean the guy with the hammer?‑‑‑Correct.

   And was that the first phone conversation or the second?---The first one.

   And what about the second?---I think the second time, I overheard him saying, 'Go to an actual ATM.'

   And do you know how much time there was between the first phone call and the second one?---I couldn't tell, sorry.

   Was it more than a few minutes?  You said you were there for a half an hour to an hour?---No, it's definitely long ‑ more than a few minutes.  Yes.

   Was it more than half an hour?---I don't know if it was over half an hour.

   Well, what happens next?  You said you were in the room for about half an hour to an hour, what makes you - so at some point, you leave the room?---No, I never leave the room.  No.

   But eventually, you get out of that room?---Correct.

   And what's the events that lead up to that?---I was asked to put my two - two hands forward.

   Who asked you that?---The gentleman with the hammer.

   And did you?---Correct.

   And what happened then?---I then got - my two wrists were tied together.

   Who tied your wrists together?---I believe it was the other gentleman who wasn't holding the hammer.

   Could you see what they were being tied together with?---I thought that it was from cord from a Venetian blinds.

   Did you see where that cord came from?---No.

   Did you have any further discussions?---I was told then to - after they tied my hands together and that, to - to put my hands down towards my foot, my right foot, and they tied my hands to my right ankle.

   Okay.  So firstly, who told you to put your hands down towards your foot?---The gentleman with the hammer.

   And who tied your hands to your ankle?---The - the - the - the gentleman that wasn't holding the hammer.

   After you - now, in relation to you being tied, was it a tight tie or how can you describe it being tied?---It - it was a fairly tight knot.  Yes.

   And then what happens?---The gentleman that wasn't holding the hammer, he left the room.

   And after he left, what happened?---The gentleman holding the hammer, he said something like, 'There's only one thing left to do now' and he took a step towards me.

   And how did you feel at that point?---I felt like I was going to eat a hammer.

   And what do you mean by that?---Well, because he had raised it so I turned away from him and thought, yeah, I - it was possible that I was going to get hit with the hammer.

   And did you get hit?---No.

   What happened?---He said to me, 'Don't ever do that'.

   And what did you take that to mean?---I took it as, 'Don't ever look away'.

   And then after that what happened?---He - I kept asking what was - what did he intend to do with the work car.

   And did he respond?---He actually did.  He - he said to me that it would be parked at the Carlisle pub.

   Did you know where the Carlisle pub was?---No, I didn't.

   Did you know how to get there?---No, I didn't.

   Did you have any idea how you were going to get there?---He actually gave me directions on how to get there.

   … 

   And then what happens?---He proceeded to leave the room.  He shut the door and then all I heard was the front door shut.

   And what did you do?---I then proceeded to try free myself.

   And … did you free yourself?---Correct.

   … 

   And how long did that take you to get yourself free?---Probably the best part of close to 10 minutes.

   And after you got yourself free what did you do?---Well, I opened the bedroom door and then I proceeded to exit the house.

   … 

   And when you left the house where did you go?---As I was walking out the front of the house what I was tied up with, I actually threw on the ground to the right of me just before I exited the house.

   Okay, so you were still in the house when you threw the - the tie away, is that what you’re saying?---Correct.

   And whereabouts in the house?---Just before the front door to the right-hand side of me.

   So that - is that in a hallway or a different room?---It wasn’t the passageway that’s - there was a room to the - just to the right of me.

   To the right of you as you’re looking out the front door?---As I was walking towards it, yes (ts 646 ‑ 654).

1. Mr Kealley's cross‑examination by Mr Stipanich's defence counsel and Mr Greer's defence counsel was, in substance, consistent with their opening statements. 

2. Mr Kealley admitted under cross‑examination that:

   (a)In a statement he gave to the police Mr Kealley lied about the quantity of methylamphetamine he had consumed on the night of 13 February 2015 and the quantity of methylamphetamine he had taken to the Carlisle home unit on the morning of 14 February 2015. 

   (b)At the original trial Mr Kealley had said he was not sure whether it was illegal to supply drugs to another person.  However, at the retrial he said he knew it was illegal to supply drugs to another person.  Mr Kealley explained at the retrial that his statement at the original trial was a mistake. 

   (c)At the original trial Mr Kealley said he had made a deliberate decision not to tell the police initially about the methylamphetamine.  However, at the retrial he said he did not make a deliberate decision not to tell the police initially about the methylamphetamine.  Mr Kealley accepted that the statement he made at the original trial was untrue.  However, he maintained that it was not a deliberate untruth, but merely a mistake.

   (d)There were some inconsistencies between Mr Kealley's account of events at the original trial and his account of events at the retrial.  In particular, there were inconsistencies as to:  the time at which he had placed his advertisement on the Locanto website; as to whether he thought the person he was communicating with in the text messages might be male; as to whether he had responded to an advertisement by Kat on Locanto or whether Kat had responded to his advertisement; as to whether the two women at the Carlisle home unit were Caucasian or Aboriginal; as to whether he did not see anything on the counter in the home unit or whether he did not remember seeing anything; and as to where the two women were standing when he entered the home unit.

3. Mr Kealley was on occasions evasive under cross‑examination.  For example, he was evasive about whether he had used the profile name 'Hungtradie' on the Locanto website and whether he was using the website for the purpose of locating a prostitute.

4. The following exchange occurred between Mr Stipanich's defence counsel and Mr Kealley:

   They never robbed you, did they, Mr Kealley?‑‑‑That's not true.

   Never threatened you?‑‑‑They threatened.

   Never had any weapons?‑‑‑They had a hammer, one with a black handle and a yellow stem.

   One with a black handle and a yellow stem ‑ have you ever given that description before of the hammer?‑‑‑I'm pretty sure I have (ts 733).

5. The following exchange occurred between Mr Greer's defence counsel and Mr Kealley:

   Mr Kealley, you are prepared to lie in relation to matters relevant to this prosecution, aren't you?‑‑‑I had done, yes.

   And I suggest to you you're lying about any form of robbery taking place in relation to you in the early hours of 14 February 2015, correct?‑‑‑Can you please repeat the question.

   I can, Mr Kealley.  I suggest to you, you are lying about the things that you say happened in relation to an alleged robbery?‑‑‑That's--- - ‑ ‑ in the early hours of 14 February 2015?‑‑‑That's not true.

   That you've lied about a whole number of matters in relation to things you say happened on that morning, haven't you?‑‑‑I lied about the mass [sic] consumption, correct (ts 720).

Bruce Harding's evidence

1. The prosecutor read into evidence, with the consent of defence counsel, a witness statement of Bruce Harding (ts 791).  Mr Harding said he was the director of BWH Holdings Pty Ltd.  That company owned the Carlisle home unit.  It was a residential unit that was managed by a real estate company.  In February 2015, Mr Harding was informed that the premises had been broken into on or about 14 February 2015.  At that time, the premises were vacant and not tenanted.  At that time, Mr Harding did not give permission to anyone to enter the premises.

Detective Senior Constable William Stokeley's evidence

1. Detective Senior Constable William Stokeley was one of the police officers whose vehicle was 'flagged down' by Mr Kealley while he was waiting for his brother‑in‑law on the footpath outside the Ultra Tune store.

2. Detective Stokeley gave evidence in cross‑examination that he had recorded in a running sheet that Mr Kealley had said he had been 'threatened by males with hammers'; that is, 'hammers, plural' (ts 759).  Mr Kealley told him there were 'multiple hammers' (ts 761).

The police and forensic investigation in relation to the hammer and the cord allegedly used to tie Mr Kealley's wrists

1. The police did not locate a hammer at or in the vicinity of the Carlisle home unit. 

2. However, two cords had been cut from venetian blinds in the living room of the unit.  Curtain cord was found on the ground at a vacant block next door.  Forensic analysis revealed that the cord had a mixed DNA profile on it which included Mr Kealley's DNA profile.

Aaron Drane's evidence

1. In February 2015, Aaron Drane worked for Ultra Tune in Carlisle.

2. On 14 February 2015, at about 7.00 am, a man (Mr Kealley) approached Mr Drane at Ultra Tune's premises and asked whether he could use the telephone.  Mr Drane permitted the man to use the telephone.  Mr Drane noticed that the man's wrists were 'really red … around the edges' (ts 741).

Mr Stipanich's evidence at the retrial

1. Mr Stipanich gave evidence at the retrial that was relevantly consistent with his defence counsel's opening statement.

2. Mr Stipanich's evidence‑in‑chief in relation to the alleged offending was, relevantly, as follows:

   Did you take any weapons with you that night?‑‑‑I did not.

   Did you have ‑ ‑ ?‑‑‑No.

   ‑ ‑ ‑ a claw hammer?‑‑‑No, I did not.

   Did you threaten him with a claw hammer?‑‑‑No, I did not.

   Now, you heard his evidence that he was tied up by a cord.  Do you know anything about that?‑‑‑No, I do not.

   Did ‑ ‑ ‑?‑‑‑No.

   ‑ ‑ ‑ you tie him up?‑‑‑No.

   Did you see anyone else tie him up?‑‑‑No, I did not.

   Did you see anyone else with any weapons?‑‑‑No.  No.

   How long after Mr Greer returned did you leave the premises?‑‑‑It was pretty much straight away.

   And where did you go after that?‑‑‑I - I got my friend to pick us up and we just went back to the house in Carlisle where the party was and, by then, most of the people had left.

   Okay.  Did you steal the car?‑‑‑No.

   All right.  Did you tell Mr Kealley that he could get his car back because you'd park it down at the ‑ ‑ ‑?‑‑‑No.

   ‑ ‑ ‑ Carlisle pub?‑‑‑No.

   Did you go anywhere near the Carlisle pub that night, yourself?‑‑‑No, I did not (ts 858 ‑ 859).

3. The following exchange occurred between Mr Stipanich and counsel for Mr Greer in relation to the alleged offending:

   Did you have a hammer on you at any stage?‑‑‑No, I did not.

   Did Mr Greer have a hammer on him at any stage?‑‑‑No.  No, he did not.

   Did anyone make any threats to Mr Kealley whilst they were in the house?‑‑‑No.  No one made any threats.

   Did Mr Greer make any threats to this man?‑‑‑No.

   It's also been suggested that Mr Kealley had his hands tied with some venetian cord.  You've heard that evidence during the course of the trial?‑‑‑Yes, I have.

   Were you present when his hands were tied in any way by venetian cords?‑‑‑No, I wasn't.

   And it's been suggested by Mr Kealley that he threw the venetian cord inside the house as he left the house.  You remember him giving that evidence?‑‑‑Yes.

   And you've heard the prosecution's evidence that the venetian blind was found outside the house on the verge I think, next door?‑‑‑Yes.

   You've heard that evidence?‑‑‑Yes.

   Do you know how that happened?‑‑‑I have absolutely no idea.

   Now, you've given evidence that Mr Greer was given the key card ‑ ‑ ‑?‑‑‑Yes.

   - ‑ ‑ or the bank card for want of a better term.  Did Mr Greer demand that item?‑‑‑No, he did not.

   Did he pull Mr Kealley's wallet from his front trouser pocket?‑‑‑No, he didn't.

   So it was handed over to him voluntarily as far as you could see?‑‑‑Yes.

   And so was the pin number?‑‑‑Yes.

   … 

   And I think you said that Mr Kealley handed over the car key, correct, or keys?‑‑‑Yes.  Yes.

   To your - to what you saw, was that voluntary?‑‑‑Yes.

   At any stage did you see any property being taken off Kealley against his will?  You understand the prosecution's case is that he was deprived of his liberty.  That is, he wasn't able to do what he wanted to do at a time that he wanted to do it, you understand that?‑‑‑I understand that.

   Based on your observations, was he ever deprived of his liberty during the course of this incident?‑‑‑No, he wasn't.

   It's been suggested that the cash was taken from him against his will, you understand that?‑‑‑Yes.

   To your observations, did that ever occur?‑‑‑Yes, no one took anything from him against his will.

   … 

   Was there anybody brandishing a hammer?‑‑‑No.

   Effectively, what the prosecution is saying, Mr Stipanich, is that you and your mate, prior to Kealley going to the house on this night formed some intention to commit a robbery.  Do you understand that?‑‑‑Yes.

   Did you and Greer in any way come to any form of agreement in relation to 115 Bishopsgate Street in Carlisle?‑‑‑No.

   Did you form any intent - common intention to commit a robbery together?‑‑‑No, sir.

   Did you in anyway use the website Locanto to try and lure a person to that house?‑‑‑No.

   But Rebecca was definitely a prostitute?‑‑‑Yeah, she's definitely a prostitute.  Or she was (ts 860 ‑ 862).

Mr Greer did not give or adduce evidence at the retrial

1. Mr Greer did not give evidence at the retrial.  His defence counsel did not call any witnesses.

The prosecutor's closing address at the retrial

1. The prosecutor submitted in her closing address:

   (a)Mr Stipanich and Mr Greer 'lay in wait' for Mr Kealley (ts 919).

   (b)Mr Stipanich and Mr Greer were in the Carlisle home unit without consent, they knew they did not have consent to be in the unit, and they had an intent to rob Mr Kealley (ts 919).

   (c)Mr Stipanich 'had [a] hammer and he was there threatening Mr Kealley'.  Mr Stipanich was in company with Mr Greer and they both had 'a joint plan' to rob Mr Kealley (ts 919).

   (d)Mr Stipanich and Mr Greer committed the offences of burglary, robbery, deprivation of liberty and stealing a motor vehicle (ts 919).

The trial judge's summing up at the retrial

1. The trial judge gave the jury orthodox directions in his summing up as to the respective functions of the trial judge and the jury:

   [M]y responsibility is to inform you of the law that applies in this case and to summarise the case that you are to decide.  Your responsibility is to apply the law as I explain it to you but you are to decide the facts of the case.  You should follow what I say about the law but I wish to stress from the outset that you must remember that anything that I say about the facts of this case in no way restricts your right and your responsibility to decide the facts of this case.  You are the judge in this room regarding facts, not me (ts 969 ‑ 970).

2. His Honour also gave the jury standard directions about accepting some but not all of a witness's evidence, the assessment of a witness's credibility and the drawing of inferences (ts 970 ‑ 971).

3. The trial judge said, in the course of explaining to the jury accessorial liability in the context of count 2:

   The State would refer to the evidence that both [Mr Stipanich and Mr Greer] entered the premises, both present when the threat [was] made and both present when the wallet was taken (ts 975).

4. So, his Honour directed the jury that the threat was singular.

5. The trial judge directed the jury in his summing up on the elements of each of the offences. 

6. As to count 1, his Honour instructed the jury, relevantly, that it was necessary for the State to prove beyond reasonable doubt that each of Mr Stipanich and Mr Greer entered the Carlisle home unit, without the consent of the owner, and with the intention of committing the offence of robbery (ts 977). 

7. His Honour told the jury that if the jury was satisfied beyond reasonable doubt that Mr Stipanich and Mr Greer were guilty of count 1 the jury would then consider the pleaded circumstances of aggravation (ts 977).

8. As to the alleged aggravating circumstance that Mr Stipanich and Mr Greer were armed with an offensive weapon, namely a claw hammer, his Honour said:

   In order to be satisfied of that … circumstance of aggravation, it has to be proven to your satisfaction that he was the man who held the offensive weapon, being the claw hammer.

   The indictment refers to this claw hammer.  A claw hammer, of course, is not an offensive weapon.  A claw hammer can have legitimate uses but the point is you take into account the way it was being used [in] the circumstances.  The State case is that Mr Stipanich was in possession of the claw hammer.

   Now, I've explained to you the way the State puts their case, that Mr Stipanich and Mr Greer were embarking on the offending together and if one of them is armed then both of them are armed as a matter of law because they are principal offenders or each [is] aiding the other (ts 977 ‑ 978).

9. As to the alleged aggravating circumstance that Mr Stipanich and Mr Greer detained Mr Kealley, his Honour said:

   The law provides that a person is said to detain another person when they deprive the other person of their personal liberty by doing things including by confining or detaining the other person in any place or by depriving their liberty in any way.  It must be detention against the person's will.  The duration of detention is not critical so long as it occurs for some period of time.

   The State's case is that Mr Kealley was detained by being kept in the bedroom towards the back of the house by the three men in the context of the implicit threat that he would be assaulted if he tried.  Further, there was the evidence [of] the tying of his hands and ankles so he was unable to leave.

   The State must not only prove there was a detention but the detention was unlawful.  In the context of this trial, that is unlikely to be an issue that will trouble you if you find it happened the way the State says, but what unlawful means is this.  A detention is unlawful if it is not authorised, justified or excused by the law (ts 978).

10. As to count 2, his Honour instructed the jury, relevantly, that it was necessary for the State to prove beyond reasonable doubt that Mr Stipanich and Mr Greer stole the property of Mr Kealley with threats of violence.  His Honour explained the notion of 'threats of violence' as follows:

    Now, with threats of violence means, in the context of this charge, threats of violence were used in order to bring about the stealing.  That is, threats of violence were not merely incidental, rather, the steal was effected with threats of violence.  Threats of violence need not be express threatening words.  Conduct or gestures can demonstrate a threat of violence.

    Now, in this case, the State alleges that Mr Stipanich was holding a hammer in his right hand at the time the demands were made of Mr Kealley and that time it was Mr Greer who took the property and that's the threat.  You obviously have to decide whether that happened (ts 979).  (emphasis added)

11. So, his Honour identified the threat as Mr Stipanich holding a hammer in his right hand when the demands were made on Mr Kealley and when Mr Greer took his property.

12. As to the alleged circumstance of aggravation that Mr Stipanich and Mr Greer were armed with an offensive weapon, namely a claw hammer, his Honour said that the direction his Honour had given the jury about that circumstance in the context of count 1 applied in the context of count 2 (ts 979).

13. As to count 3, his Honour instructed the jury, relevantly, that it was the State's case that Mr Kealley was unlawfully detained 'by being kept in the bedroom … by the three men in the context of the implicit threat that he would be assaulted if he tried [to leave]' and, further, by 'the tying of his hands and ankles so he was unable to leave' (ts 978, 980).

The trial judge's sentencing remarks at the retrial

1. The trial judge said in his sentencing remarks that Mr Stipanich and Mr Greer engaged in 'a premeditated robbery that required planning' and that they had stolen 'the items [from Mr Kealley] through the threat of violence' [35]. His Honour also said that, consistent with the jury's verdicts, he would sentence Mr Stipanich and Mr Greer 'on the basis [they] did not tie up or restrain [Mr Kealley] in any way' [39]. His Honour added that he was 'mindful that [Mr Stipanich and Mr Greer] were not armed at all which was the verdict of the jury' [39].

2. His Honour characterised the threat, for the purposes of sentencing on the conviction for count 2 (that is, the robbery), as follows:

   By your conduct of entering the bedroom while [Mr Kealley] was alone, and him moving towards the back of the wall, and with demands being made for money, it is clear that comprises the threat [9].

3. At the time of sentencing Mr Stipanich was aged 35.  He had a history of illicit drug use and a significant prior criminal record.  He had previous convictions for burglary, aggravated burglary (multiple offences) and robbery while armed and in company [24] ‑ [30].

4. At the time of sentencing Mr Greer was aged 37.  He also had a history of illicit drug use and a significant prior criminal record.  His previous convictions included aggravated burglary, aggravated robbery, robbery while armed and attempting to steal a motor vehicle [17] ‑ [23].

5. After imposing the individual sentences, the trial judge noted that there was 'a substantial overlap between counts 1 and 2' [42]. Although they were separate offences, 'they … substantially [overlap]' and that had to be taken into account in determining the total effective sentences [42].

6. His Honour decided that the individual sentences imposed on Mr Stipanich and the individual sentences imposed on Mr Greer should be served concurrently.

Mr Stipanich's and Mr Greer's ground of appeal

1. Each of Mr Stipanich and Mr Greer relies on one identical ground of appeal. 

2. The ground alleges that a miscarriage of justice was occasioned because the jury's verdicts that Mr Stipanich/Mr Greer was not guilty of the circumstance of aggravation of being armed with an offensive weapon (for both counts 1 and 2) were factually inconsistent with the verdict of guilty for both counts 1 and 2.

3. The particulars of the ground allege:

   (a)A verdict of guilty of count 1 depended upon the jury being satisfied that Mr Stipanich/Mr Greer was in the place of another without consent with the intention of committing an offence of robbery.

   (b)A verdict of guilty of count 2 depended upon the jury being satisfied that Mr Stipanich/Mr Greer committed an offence of robbery, by stealing property 'with threats of violence'.

   (c)The State's case was that each of Mr Stipanich and Mr Greer was a party to a robbery because he stole the property with threats of violence.  The only threat of violence that was relied on was Mr Stipanich's alleged act in holding a claw hammer.

   (d)The jury found that Mr Stipanich and Mr Greer were not guilty of the circumstance of aggravation, alleged in both counts 1 and 2, that they were armed with a claw hammer.

   (e)The jury's verdicts of not guilty in relation to the circumstance of aggravation that Mr Stipanich and Mr Greer were armed with a claw hammer cannot stand together with the verdicts of guilty of counts 1 and 2.

4. On 3 July 2017, Mazza JA referred the applications for leave to appeal to the hearing of the appeals.

The State's submissions on the ground of appeal

1. Counsel for the State emphasised that the case which a jury has to consider is the case that is established by the evidence and not the case as put by the prosecutor in his or her opening address.  Counsel referred to Huynh v The Queen[1] and Ritchie v The State of Western Australia.[2]

   [1] Huynh v The Queen [1999] WASCA 45 [30] (Owen J; Kennedy & Ipp JJ agreeing).

   [2] Ritchie v The State of Western Australia [2016] WASCA 134 [55] (McLure P; Buss & Mazza JJA agreeing).

1. It was submitted that the assertion by Mr Stipanich and Mr Greer in the particulars of their ground of appeal that '[t]he only threat of violence that was relied on was [Mr Stipanich's] act of holding a claw hammer' conflated the different principles that apply with respect to the role of the prosecution and the role of the jury.  Counsel argued that it is not a relevant inconsistency that the verdicts of the jury are inconsistent with the prosecution case.

2. It was also submitted that the particulars of the ground of appeal are based on an unduly narrow version of the evidence of the 'threat' upon which the jury was permitted to decide the case.  Counsel argued that the jury was required to consider the case established by the evidence and not by reference to what was said by the prosecutor, defence counsel or the trial judge with regard to the evidence.

3. Although the State had alleged in opening that Mr Stipanich held a hammer, it cannot be the case that because Mr Kealley was not believed by the jury to the required standard about the hammer that the State's case on counts 1 and 2 must fail.  If Mr Kealley's evidence about the hammer is put to one side, there was other evidence of a threat, namely that Mr Kealley was confronted by three men, while he was against a wall in a confined space, with demands for his property.  The jury performed their function by considering the facts that the jury was satisfied to the requisite standard were established by the evidence.  The verdicts are not inconsistent in the relevant sense.

4. It was submitted that the acquittal of the appellants on the two circumstances of aggravation of being armed is not inconsistent with the jury being satisfied beyond reasonable doubt of the truthfulness and reliability of Mr Kealley's evidence that he was threatened by Mr Stipanich, Mr Greer and another man who confronted him in the confined space of the bedroom in the Carlisle home unit and demanded his property.  The verdicts are explicable on the basis that the jury gave separate consideration to each count, in accordance with his Honour's directions, and applied a cautious and exacting approach to the evidence in arriving at the verdicts.  The jury's verdicts of acquittal on the circumstances of aggravation of being armed, on the one hand, and the verdicts of guilty on counts 1 and 2, on the other, do not represent an affront to logic and common sense.

The merits of the ground of appeal

1. In Riley v The State of Western Australia,[3] Buss JA examined a number of High Court decisions on inconsistent verdicts. 

   [3] Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25].

2. It is sufficient, for present purposes, to set out various propositions expressed by McHugh J in Osland v The Queen:[4]

   (a)When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, the court usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could return the verdict of guilty. Secondly, it may follow that, in acquitting the accused on one count, the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it must have misapplied or misunderstood the trial judge's directions of law [116].

   (b)Whatever category fits the case, the setting aside of a conviction on the ground of inconsistency of verdicts is a recognition that the jury has erred in its conclusions either in evaluating the facts or in giving effect to the trial judge's directions of law. When the verdicts are in accordance with the evidence and the trial judge's directions of law, inconsistency of verdicts is not a ground of appeal [117].

   (c)Ordinarily, where an appeal concerns inconsistent verdicts, the issue is whether the apparent inconsistency indicates that the conviction is unsafe. The appellate court determines that issue by examining the evidence and the trial judge's directions to the jury, not by comparing the verdicts to some principle, rule or standard that was never part of the case [118].

   (d)When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the appellate court sets aside the conviction because it is unsafe or unsatisfactory [120].

   (e)In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the trial judge's directions to the jury. An examination of the evidence, the issues, and the trial judge's directions may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Alternatively, an examination of the evidence, the issues and the trial judge's directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the jury's reasoning process [121].

   [4] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316.

3. So, where an appellant who has been convicted alleges that the jury's verdicts are inconsistent, the appellate court must consider the evidence, the issues, and the trial judge's directions to the jury in deciding whether the jury's verdict of guilty on one count is relevantly inconsistent with a verdict of acquittal on another count and the inconsistency points to an unsatisfactory or unsafe conviction. 

4. A jury is, of course, entitled to accept part, but not all, of a witness's version of events.  Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said' as to the facts:  Williams v Smith.[5]  That statement, made in the context of civil proceedings, has been applied to criminal trials.  See Stevens v The Queen;[6] WCW v The State of Western Australia;[7] and LFG v The State of Western Australia.[8]  However, those propositions are not, of themselves, an answer to a contention on appeal that a jury's verdicts are inconsistent.

   [5] Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ).

   [6] Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J).

   [7] WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).

   [8] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [356] (Buss JA; Mazza JA agreeing).

5. The decisions in Huynh and Ritchie are not relevantly applicable to the present case.  Huynh was relevantly concerned with the Crown putting to the jury a case for conviction that was different from the case alluded to by the prosecutor in the opening address.  Ritchie was relevantly concerned with whether the prosecution is obliged to inform an accused, by no later than the start of the trial, whether or not his police record of interview is to be adduced in evidence at the trial as part of the prosecution case.

6. In the present case, the issues at the retrial are to be discerned from the indictment and the manner in which the State's case and the defence cases were run.

7. The State's case at the retrial was that:   Mr Stipanich and Mr Greer entered the Carlisle home unit without BWH Holdings Pty Ltd's consent; Mr Stipanich and Mr Greer knew they did not have consent to be inside the unit; Mr Stipanich and Mr Greer were at the unit with the intention of robbing Mr Kealley; Mr Stipanich had a hammer; Mr Stipanich and Mr Greer unlawfully detained Mr Kealley in the bedroom by an implicit threat that Mr Kealley would be assaulted if he tried to leave and by tying his hands and ankles; and the home unit was ordinarily used for human habitation.

8. The defence cases at the retrial were that:  Mr Stipanich was invited to the Carlisle home unit by the prostitute, Rebecca; she permitted Mr Stipanich and Mr Greer to enter the premises; there was no robbery; there was no hammer or other weapon; Mr Kealley was not tied up, threatened or assaulted by Mr Stipanich or Mr Greer; and Mr Kealley was not deprived of his liberty.

9. We have already summarised the relevant evidence.  In particular:

   (a)Mr Kealley gave evidence that he felt threatened because one of the three men (obviously, on his version of events, Mr Stipanich) was holding a hammer (by his side) in his right hand.

   (b)Mr Kealley said it was 'a typical carpenter's hammer' with a black handle and yellow stem.

   (c)Mr Kealley said he gave the three men the PIN to each of the bankcards in his wallet because he felt threatened.

   (d)Mr Kealley said Mr Stipanich held the hammer the whole of the time they were in the bedroom.

   (e)Mr Kealley said the unidentified third man used cord from venetian blinds to tie his wrists together and to tie his hands to his right ankle.

   (f)Mr Kealley said that, after his hands and right ankle were tied with the cord from the venetian blinds, Mr Stipanich raised the hammer and Mr Kealley was concerned that he might be struck with the hammer.

   (g)Mr Kealley said that, after he had removed the cord used to restrain him, he discarded the cord in a room near the front door of the unit.

   (h)Defence counsel made a sustained attack on the credibility and reliability of Mr Kealley's evidence.  There was evidence that Mr Kealley had told some lies, made some inconsistent statements and been evasive in connection with some aspects of the offending and the police investigation.

   (i)Detective Stokeley gave evidence that Mr Kealley had told him that the offenders had 'multiple hammers'. 

   (j)Mr Drane gave evidence, as to the condition of Mr Kealley's wrists, that was consistent with Mr Kealley's wrists having been tied with a cord.

   (k)Mr Stipanich said in evidence that he did not have a hammer or any other weapon.  He did not threaten Mr Kealley with a hammer.  He did not see anyone else with any weapons.  He did not tie up Mr Kealley.  He did not see anyone else tie up Mr Kealley.  No threats were made to Mr Kealley.  Rebecca permitted Mr Stipanich and Mr Greer to enter the Carlisle home unit.  Mr Stipanich and Mr Greer did not form an agreement or a common intention to commit a robbery at the unit.  Mr Kealley was not deprived of his liberty and no‑one took anything from him against his will.

10. The trial judge's directions to the jury on count 1 identified the issues at the retrial relating to count 1 and summarised the evidence that was relevant to the issues.  In particular, his Honour identified the offence which Mr Stipanich and Mr Greer allegedly intended to commit in the home unit as the offence of robbery (ts 977).

11. His Honour's directions to the jury on count 2 identified the issues at the retrial relating to count 2 and summarised the evidence that was relevant to the issues.  In particular, his Honour identified the alleged threat of violence as Mr Stipanich holding a hammer in his right hand when demands were made on Mr Kealley and when Mr Greer took the relevant property (ts 979).

12. The trial judge's directions to the jury on count 3 identified the issues at the retrial relating to count 3 and summarised the evidence that was relevant to the issues.  In particular, his Honour instructed the jury that, on the State's case, Mr Kealley was detained by being kept in the bedroom by three men in the context of an implicit threat that he would be assaulted if he tried to leave and by the tying of his hands and ankles (ts 978, 980).

13. Plainly, the jury, by its verdicts and as it was entitled to, accepted some parts of Mr Kealley's evidence and did not accept other parts of his evidence.

14. We are of the opinion, after considering the evidence, the issues, and the trial judge's directions to the jury in relation to count 1, that:

    (a)Count 1, as pleaded in the indictment, did not particularise the offence which Mr Stipanich and Mr Greer allegedly intended to commit when they entered or were in the Carlisle home unit without BWH Holdings Pty Ltd's consent.

    (b)However, on the State's case, as opened, run and closed by the prosecutor on count 1 and as directed by his Honour in his summing up, the offence which Mr Stipanich and Mr Greer allegedly intended to commit, when they entered or were in the Carlisle home unit without BWH Holdings Pty Ltd's consent, was the offence of robbery. 

    (c)It was essential to the jury's verdict of guilty on the charge alleged in count 1 that the jury be satisfied that when Mr Stipanich and Mr Greer entered or were in the Carlisle home unit, without BWH Holdings Pty Ltd's consent, they intended to steal a thing from Mr Kealley and, immediately before or at the time of or immediately after doing so, Mr Stipanich and Mr Greer intended to use or intended to threaten to use violence to Mr Kealley or his property in order to obtain the thing intended to be stolen or to prevent or overcome resistance to its being stolen. See the elements of the offence of robbery in s 392 of the Code.

    (d)However, it was not essential to the jury's verdict of guilty on the charge in count 1 that the jury be satisfied that when Mr Stipanich and Mr Greer entered or were in the Carlisle home unit, without BWH Holdings Pty Ltd's consent, they intended to use a hammer to inflict violence or threaten to inflict violence to Mr Kealley or his property.

    (e)That is, it was unnecessary for the State to prove that, when Mr Stipanich and Mr Greer entered or were in the Carlisle home unit, without BWH Holdings Pty Ltd's consent, they intended to use a hammer to inflict violence or threaten to inflict violence on Mr Kealley or his property.

    (f)It was open to the jury to reason and conclude, on the evidence and the issues and in accordance with his Honour's directions in relation to count 1, that:

    (i)Mr Stipanich and Mr Greer entered the Carlisle home unit without BWH Holdings Pty Ltd's consent;

    (ii)when Mr Stipanich and Mr Greer entered the Carlisle home unit they intended to steal a thing or things from Mr Kealley; and

    (iii)when Mr Stipanich and Mr Greer entered the Carlisle home unit they intended, if necessary, to use or intended, if necessary, to threaten to use violence to Mr Kealley in order to obtain the thing or things intended to be stolen.

    That reasoning and conclusion did not require the jury to accept or involve the jury accepting that Mr Stipanich and Mr Greer were armed with a hammer.

    (g)The jury's verdict of guilty on the charge alleged in count 1 is factually consistent and compatible with the jury's verdict of not guilty on the circumstance of aggravation alleged in relation to count 1 that Mr Stipanich and Mr Greer were armed with an offensive weapon, namely a claw hammer. 

    (h)The ground of appeal in relation to count 1 fails.

15. We are of the opinion, after considering the evidence, the issues, and the trial judge's directions to the jury in relation to count 2, that:

    (a)Count 2, as pleaded in the indictment, did not particularise the threat or threats of violence accompanying the alleged stealing by Mr Stipanich and Mr Greer of Mr Kealley's property.

    (b)However, on the State's case, as opened, run and closed by the prosecutor on count 2 and as directed by his Honour in his summing up, the alleged threat comprised Mr Stipanich holding a hammer in his right hand when demands were made on Mr Kealley and when Mr Greer took the relevant property.

    (c)On the State's case, as opened, run and closed by the prosecutor on count 2 and as directed by his Honour in his summing up, the alleged threat did not comprise or include Mr Stipanich's and Mr Greer's conduct in entering the bedroom while Mr Kealley was alone, Mr Kealley moving backwards towards a wall and demands being made on Mr Kealley for money.

    (d)By contrast, the State's case, as opened, run and closed by the prosecutor on count 3 and as directed by his Honour in his summing up, was that Mr Stipanich and Mr Greer unlawfully detained Mr Kealley in the bedroom by an implicit threat that Mr Kealley would be assaulted if he tried to leave and by tying his hands and ankles.  As we have mentioned, the jury unanimously acquitted Mr Stipanich and Mr Greer of count 3.

    (e)The jury, by their verdict of not guilty on count 3, were not satisfied that Mr Stipanich and Mr Greer had unlawfully detained Mr Kealley in the bedroom by an implicit threat that Mr Kealley would be assaulted if he tried to leave.

    (f)It was essential to the jury's verdict of guilty on the charge alleged in count 2 that the jury be satisfied that Mr Stipanich and Mr Greer were armed with a hammer in that, on his Honour's directions in his summing up, the threat of violence which supported the allegation of the offence of robbery comprised Mr Stipanich holding a hammer in his right hand when demands were made on Mr Kealley and when Mr Greer took the relevant property.

    (g)The jury, by their verdict of not guilty on the circumstance of aggravation alleged in relation to count 2 that Mr Stipanich and Mr Greer were armed with a hammer, were not satisfied that Mr Stipanich and Mr Greer were in fact armed with a hammer.

    (h)That is, the jury, in acquitting Mr Greer and Mr Stipanich of the circumstance of aggravation that they were armed with a hammer, were not satisfied as to the threat of violence which supported the allegation of the offence of robbery.  The jury's failure to be satisfied as to the threat of violence, which supported the allegation of the offence of robbery, required them to acquit on the charge alleged in count 2.

    (i)It was not open to the jury to convict on count 2 on the basis that, although Mr Stipanich and Mr Greer were not armed with a hammer, they implicitly threatened in some other manner that Mr Kealley would be assaulted.  That reasoning and conclusion was not open because an implicit threat of that kind was contrary to his Honour's directions as to the alleged threat in relation to count 2 and, further, would have been inconsistent with the jury's verdict of not guilty in relation to count 3.

    (j)Although a jury is entitled to work out for themselves a view of the case which does not exactly represent what either the prosecutor or defence counsel has said as to the facts, that entitlement must be exercised in accordance with (and not contrary to) the trial judge's directions as to, relevantly, the issues in the case joined between the State and the accused. 

    (k)The jury, in arriving at their verdict of guilty on the charge alleged in count 2, must have misapplied or misunderstood his Honour's directions of law.

    (l)The jury's verdict of guilty on the charge alleged in count 2 is factually inconsistent and incompatible with the jury's verdict of not guilty on the circumstance of aggravation alleged in relation to count 2 that Mr Stipanich and Mr Greer were armed with a hammer.

    (m)The inconsistency demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts.  The convictions on count 2 are unsafe or unsatisfactory.

    (n)The ground of appeal in relation to count 2 has been made out.

16. The offence of stealing, contrary to s 378 of the Code, is specified in s 392 of the Code as an alternative offence to the offence of robbery alleged in count 2. We are satisfied, having regard to the trial record, that the State proved beyond reasonable doubt each of the elements of the offence of stealing.

The outcome of the appeals and the resentencing of Mr Stipanich and Mr Greer

1. We would grant each of Mr Stipanich and Mr Greer leave to appeal and would allow each appeal in part.  Each appeal should be dismissed in relation to count 1 but allowed in relation to count 2.

2. As to count 2, pursuant to s 30(5) of the Criminal Appeals Act 2004 (WA), the judgments of conviction of robbery should be set aside, judgments of acquittal of robbery should be entered and judgments of conviction of stealing should be entered.

3. This court has the information necessary to resentence Mr Stipanich and Mr Greer on the offence of stealing and to decide upon the appropriate total effective sentences.

4. After taking into account the maximum penalty for the offence of stealing (7 years' imprisonment); his Honour's findings of fact at the sentencing hearing in relation to count 2 (except to the extent that those findings concerned the alleged threat or threats of violence); the sentences imposed in previous cases of stealing with at least some features comparable to Mr Stipanich's or Mr Greer's respective offending; the place which Mr Stipanich's or Mr Greer's respective criminal conduct occupies on the scale of seriousness of offences of this kind; Mr Stipanich's or Mr Greer's respective personal circumstances and antecedents (including their behaviour and progress in custody since his Honour imposed sentence); all matters of mitigation referred to by his Honour; and all other relevant sentencing considerations, we consider that a sentence of 18 months' immediate imprisonment should be imposed on each of Mr Stipanich and Mr Greer for the offence of stealing.

5. The sentences of 4 years 10 months' immediate imprisonment imposed on Mr Stipanich and Mr Greer for count 1 should not be disturbed.  Also, the sentence of 12 months' immediate imprisonment imposed on Mr Greer for count 4 should stand.  We are satisfied, having regard to all relevant sentencing factors and all relevant sentencing

principles (including the trial judge's findings of fact at the sentencing hearing in relation to counts 1 and 4) that each of those individual sentences was appropriate.  Mr Greer's sentences on counts 1 and 4 should continue to be served concurrently.

1. The sentences of 18 months' immediate imprisonment for the offence of stealing should be served concurrently with the sentences of 4 years 10 months' immediate imprisonment for count 1 and, in the case of Mr Greer, with the sentence of 12 months' immediate imprisonment for count 4.  The total effective sentences therefore remain 4 years 10 months' immediate imprisonment.  The sentences should continue to be backdated to 10 August 2016, in the case of Mr Stipanich, and to 5 January 2017, in the case of Mr Greer.  Both Mr Stipanich and Mr Greer remain eligible for parole.

A concluding observation

1. Finally, we note that at the conclusion of the hearing of the appeals the court made orders for each of the parties to file and serve written submissions as follows:

   (a)as to count 1, whether it was open to the court to dismiss the appeal on the ground that there had been no miscarriage of justice, or alternatively no substantial miscarriage of justice of justice, because the jury must have found that there was an aggravated burglary with intent to commit the offence of stealing as distinct from robbery; and

   (b)as to count 1, whether it was open to the court, pursuant to s 30(5)(c) of the Criminal Appeals Act, to substitute a judgment of conviction for an offence against s 401(2)(a) instead of s 401(1)(a) of the Code.

2. Each of the parties filed and served written submissions in accordance with the court's order.

3. It has been unnecessary for the court in resolving the appeals to deal with the issues raised in the court's order and the written submissions filed and served pursuant to the order.

   MITCHELL JA: 

4. The appellants were convicted after trial of one count of aggravated burglary, contrary to s 401(1) of the Criminal Code (WA), and one count of robbery, contrary to s 392 of the Code. The jury's verdicts indicated

that the State had not established a circumstance of aggravation alleged by the State in each count - that the appellants were armed with an offensive weapon, namely a claw hammer.  The appellants now appeal against their convictions.  They contend that there was a miscarriage of justice because the finding that the appellants were not guilty of that circumstance of aggravation was factually inconsistent with the verdicts that the appellants were guilty of the burglary and robbery offences.

1. The appellant's strongest argument relates to the robbery conviction.  It is convenient to focus on whether the verdict of guilty on that charge was factually inconsistent with the finding that the State had not established the appellants to have been armed with a claw hammer.

2. Count 2 of the indictment identified the robbery offence as being that, on 14 February 2015 at Carlisle, the appellants stole from the complainant, with threats of violence, $75 in cash, a mobile telephone, a wallet and bankcards the property of the complainant.

The complainant's account

1. The principal evidence supporting the State's case at trial was the evidence of the complainant.  His account was to the following effect.

2. The complainant had exchanged messages on a mobile phone app with a person who he understood to be female, arranging to meet at premises in Carlisle to exchange methamphetamine for sexual favours.  He drove his work ute to the property early in the morning of 14 February 2015.  When he knocked on the door, it was answered by a female who was in company with another woman.  The complainant followed the women into a bedroom.  The house was empty of furniture.  As the complainant walked through to the bedroom, the women left the room and a tall man with an athletic build entered the room. 

3. As identity was not in contest in the appeal, it is convenient to refer to the appellants by name in the following account, notwithstanding that the complaint's evidence only referred to the description of the men who he did not know.  It was not in contest that the tall man described by the complainant was Stipanich.

4. The complainant said:[9]

   As [Stipanich] walked through and that, I just remember backing myself up towards - backing myself up against a wall.

   And why did you do that?---Cos I felt threatened.

   And why did you feel threatened?---As he was holding a hammer.

   And where was he holding a hammer?---Think he had it in his right hand, by his side.

   And what did that hammer look like?---It was like a typical carpenter's hammer. It had a black handle and yellow stem.

   And then what happens next?---Another two gentlemen, they entered the room as well.

   One of these men was identified as Greer.  The other man was not identified.

   [9] Trial ts 646 ‑ 647.

5. The complainant said something along the lines of 'you've got to be kidding'.  Stipanich asked 'where is it?'  The complainant, understanding Stipanich to be referring to the methamphetamine and his money, said that it was in his front pocket.  Stipanich asked the complainant to raise his hands above his head, and the complainant complied.  Greer then came over and went through the complainant's pockets, pulling out his phone, wallet (which contained $75 case and various cards) and car keys.  The complainant did not know what happened to the methamphetamine he brought with him.[10] 

   [10] Trial ts 647 ‑ 648.

6. The complainant was asked for, and provided, PINs for his bank cards.  When asked why he gave the men his PINs, the complainant said:[11]

   I felt that by not giving it to them wasn't going to be a good choice to make. I felt threatened.

   [11] Trial ts 649.

7. Greer and the third man then left the bedroom.  Stipanich told the complainant to take his shoes off.  The complainant complied, leaving them on the floor.  Stipanich told the complainant to sit down.  The complainant sat on the floor under a window, with his back against the wall.  Stipanich told the complainant that this was his karma and he had this coming.  Stipanich approached the complainant and took a pair of sunglasses off the complainant's head and put them on himself.

8. After about half an hour, Stipanich asked the complainant to put his hands forward, and tied them together with a cord from venetian blinds.  The complainant's hands were then tied to his right ankle.  Stipanich then:[12]

   said something like, 'There's only one thing left to do now' and he took a step towards me.

   And how did you feel at that point?---I felt like I was going to eat a hammer.

   And what do you mean by that?---Well, because he had raised it so I turned away from him and thought, yeah, I - it was possible that I was going to get hit with the hammer.

   And did you get hit?---No.

   What happened?---He said to me, 'Don't ever do that'.

   [12] Trial ts 653.

9. Stipanich explained that the complainant's work ute would be left at the Carlisle pub and then departed.  After about 10 minutes, the complainant was able to free himself and leave the house.

Corroborating evidence

1. While the appellant's counsel advanced arguments in favour of doubting the complainant's evidence, there was evidence to corroborate aspects of his evidence‑in‑chief.  This included CCTV footage of Greer attending an ATM at about 6.46 am on 14 February 2015 and records of $1600 in withdrawals from the appellant's bank account between 6.33 am and 7.31 am on that day.  There was a variety of evidence indicating a break in to the Carlisle premises, including cut cords on venetian blinds.  Curtin cord with the complainant's DNA was found on an adjoining vacant block.  There was evidence of the complainant being found wandering the middle of the road in a distressed state at about 7.30 am on the day of the offence, and asking to borrow a mobile phone to call his bank.  The prosecutor adduced evidence of the mobile phone messages which lured the complainant to the Carlisle premises.  The complainant's work ute was found in the carpark of the Carlisle hotel with the keys in the rear tray.

2. However, there was no corroboration of the complainant's account that a hammer was present.

The trial judge's direction

1. The trial judge gave the following directions as to the elements of the offence of robbery:[13]

   The State must prove that it was Mr Greer and Mr Stipanich who did the things that constitute the offence. Second, that the accused stole it, and third, that it was with violence, and fourth, that it was the property of Mr Kealley. You need to be satisfied of them beyond a reasonable doubt.

   [13] Trial ts 979.

2. The trial judge then gave the following direction as to the third of these elements:[14]

   Now, with threats of violence means, in the context of this charge, threats of violence were used in order to bring about the stealing. That is, threats of violence were not merely incidental, rather, the steal was effected with threats of violence. Threats of violence need not be express threatening words. Conduct or gestures can demonstrate a threat of violence.

   Now, in this case, the State alleges that Mr Stipanich was holding a hammer in his right hand at the time the demands were made of Mr Kealley and that time it was Mr Greer who took the property and that's the threat. You obviously have to decide whether that happened.

   [14] Trial ts 979.

3. The trial judge also directed the jury to the effect that they had to be satisfied that Stipanich was in possession of the claw hammer in order to find the State had established the circumstance of aggravation that the appellants were armed with an offensive weapon.[15]

   [15] Trial ts 977 ‑ 978, 979.

4. The trial judge gave standard directions in relation to assessing the credibility of witnesses, including that the jury may accept only part of the evidence of a witness.[16]  The trial judge also gave standard directions as to the need for the jury to separately consider each charge and whether the appellant was guilty of each circumstances of aggravation.[17]

   [16] Trial ts 970-971.

   [17] Trial ts 972, 1001.

Legal principles

1. The principles to be applied where an appellant alleges that a jury's verdicts are factually inconsistent and incompatible were recently summarised by Buss P, with whom Mazza JA and I agreed, in KND v The State of Western Australia:[18]

   It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question.  If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense.  The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.

   A jury is, of course, entitled to accept part, but not all, of a witness's version of events.  Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said'.  (citations omitted)

   [18] KND v The State of Western Australia [2017] WASCA 36 [36] ‑ [37].

Disposition of ground

1. The complainant's credibility was attacked during cross-examination, and the complainant admitted giving false information to the police and at an earlier trial of the offences.[19]  The jury were entitled to have concerns about the reliability of the complainant's evidence.  They were also entitled to have regard to the evidence which corroborated his account and conclude that, notwithstanding those concerns, the evidence taken as a whole established beyond reasonable doubt that the events occurred generally in the manner the complainant described.  On that basis, the jury could be satisfied beyond reasonable doubt that the appellants and the third person stole the items particularised in the indictment with a threat of violence.

   [19] The cross-examination is summarised in the trial judge's direction at trial ts 983 ‑ 984.

2. Irrespective of whether or not the hammer was present, the threat described by the complainant was implicit.  The complainant did not give evidence that any of the men used overtly threatening words.  There was no evidence that Stipanich ever wielded the hammer described by the complainant in a threatening manner at or about the time the particularised items were taken.  The complainant's evidence was that Stipanich was holding the hammer in his right hand by his side at the relevant time.  The only evidence of the hammer being held in a threatening manner was just before Stipanich's ultimate departure, which was well after the items particularised in the indictment had been taken.  The threat described by the complainant was an implied threat which arose from the presence of three men, one of whom was holding a hammer by his side, in the bedroom of the empty house as the complainant was backed up against a wall.

3. The absence of any corroboration of the presence of a hammer might have given rise to a reasonable doubt in the jury's mind as to whether a hammer was actually present.  That would be consistent with the jury taking a cautious approach to the complainant's evidence, and only acting on it where there was some corroboration of his account.  It would not necessarily reflect a positive conclusion by the jury that the complainant was lying.  Adopting that approach, the jury might have been satisfied that the particularised items were stolen with an implicit threat of violence, constituted by the conduct described by the complainant, even if the jury had a reasonable doubt about whether Stipanich was holding a hammer by his side at the time.

4. The first paragraph of the trial judge's direction quoted at [123] above involved a statement of general principle. The second paragraph applied that statement of general principle to the State's allegation in relation to the hammer. The jury might have had a reasonable doubt as to the presence of a hammer, but be otherwise satisfied that there was stealing with an implied threat in the manner described by the complainant. In that event, applying the first paragraph of the quoted direction, the jury could still be satisfied beyond reasonable doubt that there was a threat of violence which was not express. In that circumstance, the jury could find that the circumstance of aggravation, that the appellants were armed with a hammer, was not established.

5. In my view, it was logically and reasonably open to the jury to find the appellants guilty of robbery without being satisfied beyond reasonable doubt that a hammer was present.  Doing so did not involve any procedural unfairness to the appellants.  The appellants were not entitled to an outright acquittal merely on the basis that the jury were not satisfied beyond reasonable doubt of that aspect of the prosecution case which alleged that Stipanich was holding a hammer by his side at the relevant time.  The case which the jury had to consider is that which is established by the evidence, not by the prosecution's opening.  Convicting the appellant on the alternative basis postulated above would not be tantamount to adding a second count to the indictment.[20]

   [20] Huynh v The Queen [1999] WASCA 45 [30].

6. The appellant's counsel referred to the following passage of McHugh J's judgment in Osland v The Queen:[21]

   When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons.  First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty.  Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused.  Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.  (citations omitted)

   [21] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [116].

7. Neither reason referred to by McHugh J has been established in this case.  The jury was not required to be satisfied that Stipanich was holding a hammer in order to convict the appellants of robbery.  The jury did not have to accept any other evidence in order to fail to be satisfied beyond reasonable doubt that Stipanich was holding a hammer.  The verdicts were consistent with the jury applying the trial judge's directions.

8. In my view the ground of appeal is not made out in relation to count 2.  The appellant's position in relation to count 1 is no stronger.  I would grant leave to appeal in each case, but dismiss both appeals.